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Courtney!!! Milan 🦖 @courtneymilan
, 7 tweets, 1 min read Read on Twitter
One of the things I appreciated about Booker’s line of questioning last night (based in part on the emails that became the subject of conversation) is that he really laid out how Equal Protection jurisprudence has paradoxically turned into protection for racism.
Structural elements of racism, including lack of historical access to resources and unconscious bias, mean that government programs often have disproportionate racial impacts, sometimes massively so.
Under current equal protection jurisprudence, disproportionate impact is not something you can sue about. It doesn’t matter if it discriminates, as long as it’s not done with the mental PURPOSE of discrimination.
But what happens if government NOTICES that there is a racial disparity, and wants to FIX it?

Well, the affirmative action line of cases kick in—and the answer is there is very little the government can do because fixing a racial disparity is purposeful discrimination.
At this point, Equal Protection jurisprudence means that structural racism is allowed, but attempts at dismantling structural racism are suspect.
There is the tiniest, narrowest of windows through which government can act, and when O’Connor wrote the majority opinion years ago, she suggested that this narrow window should sunset because affirmative action won’t be necessary.

It will sunset in Kavanaugh’s lifetime.
So that’s one of the things that is at stake here, ha ha, no worries!

No matter who we we vote in, the Constitution has been interpreted to block most legislative attempts at addressing racism, and quite possibly this one dude will interpret it as blocking all of them.
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